Civil Rights and Discrimination Commons^™

The Pandemic And The Public Nuisance: Judicial Intervention In The Era Of Covid-19 And The Collective Right To Public Health, Kyra Ziesk-Socolov

Washington and Lee Journal of Civil Rights and Social Justice

Amidst the unprecedented disruption caused by COVID-19, workplace lawsuits around the country began to apply a longstanding common law theory in a novel way: employee plaintiffs argued that their employers’ noncompliance with state and federal public health guidance designed to curb the spread of the virus should be enjoined as a public nuisance. Although some of these initial public nuisance suits were dismissed, others successfully forced defendant businesses to either alter their COVID safety practices or temporarily close. This Article explores the first pandemic-era public nuisance suit, Rural Community Workers Alliance v. Smithfield Foods, brought by meatpacking plant workers …

Pretext After Bostock—Disproving One Of The Employer’S Reasons Is Enough, Robert S. Mantell

Washington and Lee Journal of Civil Rights and Social Justice

When an employer gives a pretextual reason for an employee’s termination, that falsehood can help prove that the true reason was discrimination. The dishonesty constitutes “affirmative evidence of guilt.” The trier of fact may “infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” However, when an employer provides multiple reasons for firing an employee, there has been a split of opinion whether the plaintiff must disprove one or all of those reasons.

The Supreme Court’s recent discussion of multiple motives in Bostock v. Clayton County provides the tools to resolve this split and compels rejection of …

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

Senseless Sentencing: The Uneven Application Of The Career Offender Guidelines, Christopher Ethan Watts

Washington and Lee Journal of Civil Rights and Social Justice

Federal appellate courts are currently split on the definition of “controlled substance” in the career offender guideline, with one side using federal law to define the phrase, and the other side allowing standalone state law offenses to trigger the guideline. Allowing state law to define the phrase allows countless substances Congress never intended to penalize to be able to trigger one of the most severe penalties in the Sentencing Guidelines. This Note assesses the landscape of the circuit split and analyzes the arguments for and against federally defining “controlled substance offense.” This Note then proposes a novel way to resolve …

As Fires Blaze Through California, Could They Blaze A New Path For Incarcerated Individuals: A Model For Back-End Abolition, Jacquelyn Kelsey Arnold

Washington and Lee Journal of Civil Rights and Social Justice

This Note provides a critique on the current system of prison labor through the lens of the California wildfires and the lack of inmate labor due to early release in the wake of COVID-19. This Note provides an overview of the relevant history of the Thirteenth Amendment, contextualizes mass incarceration as a product of the “War on Drugs” in the United States, and consequently, discusses the significant and dramatic expansion of the prison industrial complex and the use of prison labor as a growing source of production labor. It concludes with a recommendation for a provisional back-end abolition model that …

Minority And Vulnerable Populations Voting By Mail: A Convenience Or A Disadvantage, Kylan Sophia Josephine Memminger

Washington and Lee Journal of Civil Rights and Social Justice

Mail-in voting has feverishly gained popularity in the United States over the last few primary and general elections. In light of this new balloting reality, a trend has emerged. Statistics from minority and vulnerable populations reveal that mail-in ballots composed and sent by these groups have been consistently rejected at a higher rate compared to majority populations. This Note begins by surveying the constitutional background for bringing a challenge to voting rights legislation, while confronting the divisive history of legal precedent surrounding these claims. This Note then analyzes the Supreme Court’s decision in Crawford v. Marion County Election Board and …

Blood, Sweat, Tears: A Re-Examination Of The Exploitation Of College Athletes, Keely Grey Fresh

Washington and Lee Journal of Civil Rights and Social Justice

2021 Louise Halper Award Winner for Best Student Note

The unrest revolving around compensation for college athletes is not a new concept. However, public attitudes are shifting. With spirited arguments on both sides, and the recent Supreme Court decision of National Collegiate Athletic Association v. Alston regarding antitrust exemptions, the issue has been placed in a spotlight. This Note examines the buildup of discontentment through the history of the NCAA and amateurism, specifically how the term “student-athlete” became coined. It will then move to litigation efforts by athletes in an attempt to gain employment status, and an alternative route of …

Masthead

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Whiteness As Contract, Marissa Jackson Sow

Washington and Lee Law Review

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

The Golem In The Machine: Ferpa, Dirty Data, And Digital Distortion In The Education Record, Najarian R. Peters

Washington and Lee Law Review

Like its counterpart in the criminal justice system, dirty data—data that is inaccurate, incomplete, or misleading—in K-12 education records creates and catalyzes catastrophic life events. The presence of this data in any record suggests a lack of data integrity. The systemic problem of dirty data in education records means the data stewards of those records have failed to meet the data integrity requirements embedded in the Family Educational Rights and Privacy Act (FERPA). FERPA was designed to protect students and their education records from the negative impact of erroneous information rendered from the “private scribblings” of educators. The legislative history …

Honoring Lutie A. Lytle And John Mercer Langston With Our Words, Carliss Chatman

Washington and Lee Law Review

The recent attacks on critical race theory make one fact very clear: the lack of Black voices in public discourse creates distortion and exploitation. This inaugural Black Scholars Book, the first of its kind published annually, is not about defining or justifying critical race theory—as some scholars in this book would not deem themselves to be critical race theorists. Instead, it is about righting the wrongs that enable the weaponization of scholarship by and about Black people. The goal of the W&L Law Review is to hold space for scholarship of historically marginalized and silenced voices. This inaugural book contains …

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

Fighting A New Wave Of Voter Suppression: Securing College Students’ Right To Vote Through The Twenty-Sixth Amendment’S Enforcement Clause, Ryan D'Ercole

Washington and Lee Law Review

Throughout the 1960s, young people protested for racial and LGBTQ+ equality, women’s rights, and an end to the Vietnam war. In the process, they earned the most fundamental right— the right to vote.

Fifty years ago, in the summer of 1971, the Twenty-Sixth Amendment was ratified. In addition to lowering the voting age to eighteen, the Twenty-Sixth Amendment prescribed that the right to vote “shall not be denied or abridged by the United States or by any State on account of age.” But in the fifty years since ratification, states have continued to enact laws that abridge the right to …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

Deportation And Depravity: Does Failure To Register As A Sex Offender Involve Moral Turpitude?, Rosa Nielsen

Washington and Lee Law Review

Under U.S. immigration law, non-citizens are subject to deportation following certain criminal convictions. One deportation category is for “crimes involving moral turpitude,” or CIMTs. This category usually refers to crimes that involve fraud or actions seen as particularly depraved. For example, tax evasion and spousal abuse are CIMTs, but simple assault generally is not. For a crime to qualify as a CIMT, it must include depraved conduct and some level of intent.

The CIMT framework has been criticized for a variety of reasons. Not only is it defined ambiguously with outdated language, but the moral values it enshrines can sometimes …

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

The Soft-Shoe And Shuffle Of Law School Hiring Committee Practices, Carliss N. Chatman, Najarian R. Peters

Scholarly Articles

It is in the spirit of Ida B. Wells that we seek to turn the light upon the systemic racism of hiring practices. We believe these practices are indicators of the systemic failures on campuses and in workplaces that prevent them from being antiracist. We seek to use this Essay as a “tool for exposing, analyzing, and challenging the majoritarian stories of racial privilege.”

Our specifc intention is to recognize the largely performative nature of claiming to be committed to an idea while substantively and concretely ensuring the opposite. This Essay is written with specific experiences, patterns, and practices in …

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Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Table Of Contents

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Editor’S Note, Kimberly Shi

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Symposium Schedule

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Weathering The Pandemic: Dying Old At A Young Age From Pre-Existing Racist Conditions, Arline T. Geronimus

Washington and Lee Journal of Civil Rights and Social Justice

Mainstream social epidemiology now acknowledges the contributions of interpersonal racism, racialized stress, and implicit bias to population health inequity. It also increasingly recognizes that current and historical racist policies place barriers in the way of healthy lifestyles by institutionalizing food deserts, housing decay, and austerity urbanism. Essential as these developments are, they only skim the surface of how insidiously structural racism establishes and reproduces population health inequity. I coined the term “weathering” to describe the effects of sustained cultural oppression upon the body. Weathering expands on the more conventional “social determinants of health” approach to understand the contextually fluctuating and …

Empathy’S Promise And Limits For Those Disproportionately Harmed By The Covid-19 Pandemic, Theresa Glennon

Washington and Lee Journal of Civil Rights and Social Justice

Structural race, ethnicity, and class disparities in the United States concentrated and intensified the health, economic, and psychological impact of COVID-19 for certain populations. Those same structural disparities and the belief system that maintains them may also account for the weak policy response that left the United States with high rates of infection and death, economic devastation of individuals, families, and small businesses, and psychological distress. A more equal society with a stronger pre-pandemic safety net may have prevented or eased the disproportionate hardship and avoided the drama and cliffhanging. Or the shock of a pandemic and likelihood of extreme …

School Finance, Race, And Reparations, Preston C. Green Iii, Bruce D. Baker, Joseph O. Oluwole

Washington and Lee Journal of Civil Rights and Social Justice

In this article, we explain why and how school finance reform should be a part of a reparations program for Black Americans. This article proceeds in six parts. Part I explains how Black-white school funding disparities occurred during the separate-but-equal era. Part II discusses how these funding disparities have occurred in the aftermath of the Brown decision. Parts III and IV explore why school desegregation and school finance litigation, respectively, have failed to remedy these gaps. Part V lays out a reparations framework that state legislatures could adopt to provide restitution to schools and taxpayers harmed by state policies creating …

Can “Asians” Truly Be Americans?, Vinay Harpalani

Washington and Lee Journal of Civil Rights and Social Justice

Recent, tragic events have brought more attention to hate and bias crimes against Asian Americans. It is important to address these crimes and prevent them in the future, but the discourse on Asian Americans should not end there. Many non-Asian Americans are unaware or only superficially aware of the vast diversity that exists among us, along with the challenges posed by that diversity. Some have basic knowledge of the immigration and exclusion of Asian Americans, the internment of Japanese Americans which was upheld in Korematsu v. United States, and the “model minority stereotype”, but these are Asian Americans 101. This …

Persistent Inequalities, The Pandemic, And The Opportunity To Compete, Rachel F. Moran

Washington and Lee Journal of Civil Rights and Social Justice

Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic has laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first will focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I will explore patterns of racial and ethnic segregation in America’s schools and how those patterns are linked to additional challenges based on socioeconomic isolation. In addition, I will consider the role of language and …

Giving Due Process Its Due: Why Deliberate Indifference Should Be Confined To Claims Arising Under The Cruel And Unusual Punishment Clause, Shad M. Brown

Washington and Lee Journal of Civil Rights and Social Justice

This Note discusses culpability requirements for claims brought by pretrial detainees and convicted prisoners. The initial focus is on deliberate indifference, a culpability requirement formulated under the Cruel and Unusual Punishment Clause but symmetrically applied to claims arising under the Due Process Clause of the Fourteenth Amendment. The Note then shifts to Kingsley v. Hendrickson, a landmark Supreme Court decision that casts doubt on the application of Eighth-Amendment standards to Fourteenth-Amendment claims. Finally, this Note advocates for the application of objective unreasonableness, a different culpability requirement, to claims arising under the Due Process Clause. It does so on the …

It’S My Party, And I’Ll Do What I Want To: Making The Case For Judicial Review Of National Interest Waiver Denials, M. Hunter Rush

Washington and Lee Journal of Civil Rights and Social Justice

Politics and personal beliefs have become increasingly intertwined since the founding of the United States. Few issues have divided Americans more than immigration laws and policies. This Note advances the argument that when a noncitizen’s application for a National Interest Waiver is denied, there must be some recourse. The current problem is exacerbated when the United States Citizenship and Immigration Services, on behalf of the Secretary of Homeland Security, denies a waiver for what appears to be racially or religiously motivated purposes. Judicial review in an Article III court is the most neutral forum of review that a noncitizen residing …

Opportunity Zones Providing Opportunity For Whom?: How The Current Regulations Are Failing And A Solution To Uplift Communities, Ruta R. Trivedi

Washington and Lee Journal of Civil Rights and Social Justice

In 2017, the newly enacted Tax Cuts and Jobs Act created an incentive for taxpayers to invest in Qualified Opportunity Zones— census tracts that consist of low-income communities. These investments, which are incentivized via lucrative tax deferral benefits, are intended to uplift communities and leave them in a better position than they were pre-investment. However, the initiative lacks regulation requiring investments to actually benefit low-income areas, resulting in money going to places that do not need help, while communities that are in need may face displacement. This is a result of many wealthy investors finding that luxury projects are the …